On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket Number FM-12-518-98.
Before Judges Eichen, Fall and Weissbard.
The opinion of the court was delivered by: Fall, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
In this post-judgment matrimonial appeal, we address the issue of the standards to be applied when the joint legal, non residential custodial parent opposes relocation of the parties' child by the joint legal, residential custodial parent to another residence within the State of New Jersey. Here, both parties and the child had been residing in the same county. We conclude that such circumstances do not constitute a statutory"removal" action pursuant to N.J.S.A. 9:2-2, requiring court approval for the proposed relocation. However, the relocation of a child by the joint legal, residential custodial parent to another in-state location may constitute a substantial change in circumstances warranting modification of the existing custodial and parenting-time arrangement.
Here, plaintiff Robert W. Schulze appeals from an order entered in the Family Part on March 26, 2002, denying his application to compel defendant Lisa M. Schulze to relocate with their child from Sussex County to Middlesex County. The issues raised in this appeal arise from the following factual and procedural history.
A final judgment of divorce was entered in the Family Part on February 23, 1998, dissolving the parties' marriage, and placing their child, Robert Schulze, III, in the joint legal custody of the parties, with defendant serving as the residential custodian. At the time of entry of the final judgment, plaintiff, a trauma surgeon, was relocating temporarily to Maryland on or about July 1, 1998 in order to perform a fellowship at the University of Maryland.
The parties agreed to a parenting plan that provided for plaintiff to exercise parenting time with the child on alternate weekends, plus one overnight session during the week and a sharing of holidays and extended vacation time. Upon plaintiff's residency in Maryland becoming effective, plaintiff was to have parenting time with the child during two weekends each month -- -- one weekend in New Jersey and one weekend in Maryland. It was anticipated that plaintiff would be returning to reside in New Jersey on or about July 1, 1999, whereupon the plaintiff's parenting time with the child"shall be renegotiated[,]" and"[i]f the parties cannot amicably resolve this issue, either party may apply to the Court to fix the parenting time schedule."
At the time of divorce, the parties jointly owned a condominium at 32 Keith Court in Kendall Park, Middlesex County. The parties' agreement, which was incorporated into the final judgment, permitted defendant to reside in the condominium until December 31, 2001, or as otherwise extended by the parties. It was acknowledged that defendant could also choose to vacate that residence at an earlier date, but she agreed not to make an application to reside outside New Jersey with the child prior to June 30, 2000, unless plaintiff failed to return to New Jersey after completion of his fellowship. The agreement provided that upon defendant vacating the residence, it was to be sold, with the net sales proceeds to be equally divided between the parties. Alternatively, defendant could opt to purchase plaintiff's interest therein under a formula prescribed in the final judgment.
The record indicates that in April and May 2000, the parties were discussing defendant's attempts to secure financing sufficient to purchase plaintiff's interest in the property. However, that did not occur and defendant decided to sell the property and re-locate to the Sussex County area.
When plaintiff returned to New Jersey he took a position at Kings Hospital Center in Brooklyn, New York. Plaintiff has remarried and has established a residency in Metuchen, Middlesex County.
Defendant is an elementary school teacher, and was working in the Highland Park School District in Middlesex County. However, when she was not offered tenure at the end of three years, she sought a position elsewhere and decided to move to Vernon in Sussex County.
On plaintiff's application, an order to show cause was executed on June 27, 2000, directing defendant to show cause why she should not be restrained from relocating the child outside the boundaries of Middlesex County. Plaintiff also sought a custody evaluation and a plenary hearing pertaining to his application for a change in residential custody. Defendant filed a cross-motion seeking an order compelling plaintiff to participate in mediation for the purpose of establishing a parenting schedule.
After conducting a hearing on July 21, 2000 -- -- the return date of the order to show cause -- -- the court entered an order on August 17, 2000, directing that a plenary hearing be scheduled within ninety days"regarding whether the defendant may relocate with the child of the marriage to Vernon Township, New Jersey." The order also required the parties to engage in mediation in an attempt to resolve the matter. Defendant was permitted to relocate to Vernon Township, without prejudice, and an interim parenting-time plan was ordered. The order also provided for discovery, and denied plaintiff's application for ...